In this Part, certain provisions of the Criminal Code will be assessed in the wake of Dagenais. A discussion of significant procedural issues will follow.

A. Selected Provisions

The constitutionality of a number of provisions of the Criminal Code relating to publication bans has already been challenged under section 2(b) of the Charter. Some of these provisions have been sustained at least in part. Others, however, have managed to escape constitutional scrutiny. The more important of these provisions are discussed in this section.

1. Sections 486(3) and (4)

Superior courts of criminal jurisdiction have long had the power to protect the rights of third parties, including witnesses, in criminal proceedings. For example, protecting witnesses by the manner in which courtrooms are configured had been within the inherent power of courts prior to Parliament enacting provisions relating to screens and sequestration.46 As well, the inherent power of superior courts to preserve access to the courts themselves and the proceedings which take place there has been acknowledged on numerous occasions.47

The power of a superior court to impose limitations upon publication is another illustration of this authority to protect the interests of a third party, oftentimes a complainant or victim of crime. While it is an open question whether the discretionary power to order publication bans is inextricably included within the fundamental powers of a superior court of criminal jurisdiction, Parliament has enhanced the discretionary power to ban publication under sections 486(1) and (2) of the Criminal Code, which are discussed below, by clothing all courts of criminal jurisdiction with this power. Parliament has supplemented this authority by providing for a mandatory publication ban pursuant to sections 486(3) and (4), which is limited only to the identity of the complainant.48

These latter two provisions have survived constitutional attack. For example, the precursor of the current section 486(4) was upheld in Canadian Newspapers Co. 49 In that case, Lamer J. (as he then was) wrote for the Court and sustained the former section 486(4) as a reasonable limitation upon freedom of expression. He expressly left open the question of whether section 486(4) offended the right of an accused person to a fair trial.50 Since this pronouncement of the Supreme Court, this particular provision has been amended to include witnesses under the age of 18 years as well as complainants in sexual matters. However, in light of the limited application of this provision which the Court held to be necessary to ensure that the legislative objective was not frustrated, it is difficult to perceive how trial fairness is abridged by these sections.

On balance, it is likely that the constitutional propriety of this provision will not be revisited post-Dagenais. It is true that sections 486(3) and (4) do not provide for the generous balancing approach advocated by Lamer C.J. in Dagenais. However, the limitation placed upon freedom of the press by this section is very narrow and it is arguable that it indirectly received the blessing of the Supreme Court in R. v. O'Connor.51 This provision is not in need of re-drafting.

Proposal: That sections 486(3) and 486(4) of the Criminal Code be retained in their current form. 2. Section 486(1)

Currently, section 486 (1) permits a trial judge to close the court to "all members of the public" provided he or she "is of the opinion that it is in the interest of public morals, the maintenance of order or the proper administration of justice" to do so. Very recently, the Supreme Court of Canada unanimously upheld the constitutionality of the "proper administration of justice" arm of this provision in Canadian Broadcasting Corporation v. New Brunswick (Attorney General) et. al.52 The Court announced that it was sustaining the constitutionality of that portion of the impugned section with "reasons to follow".53 The New Brunswick Court of Appeal had earlier found section 486 (1) was a reasonable limitation upon freedom of expression. 54

The other bases enumerated in section 486 (1) upon which a presiding judge may close a courtroom, namely "in the interest of public morals [and] the maintenance of order" are not obviously unconstitutional. The section makes it clear that any order made pursuant to it is discretionary. However, this fact does not render it constitutionally suspect. Discretion abounds in the criminal law. The Supreme Court has already held that discretion reposed in state agents does not offend the Constitution.55 Curial deference, even more so, is not invalid on this basis. On the contrary, it is a key element of a court's ability to carry out not only the various duties assigned to it, but to act as a guardian of the Constitution itself. 56 Indeed, as Tallis J.A., speaking for the Saskatchewan Court of Appeal in Saskatchewan (Attorney General) v. McConachie57 , remarked this discretion is "to be exercised on a case by case basis in light of the relevant facts and circumstances with due regard for the presumption of openness enshrined in s. 486 of the Criminal Code and the common law."58 To this mix must be added the balancing of constitutional values identified by Lamer C.J. in Dagenais.

Another recent case in which the constitutionality of section 486(1) was impugned is The Estate of Kirsten French et. al. v. Attorney General of Ontario.59 The relief sought on that particular application was whether explicit video-tapes which had been introduced during Paul Bernardo's first degree murder trial should be destroyed. As well, the Applicants sought a declaration that section 486 (1) of the Criminal Code, was unconstitutional, principally because the "public morals" aspect of the provision was vague and did not adequately protect victims of sexually related offenses. In the course of the hearing before Gravely J. of the Ontario Court of Justice (General Division), counsel for the Applicants presented a proposed amendment to the current section 486(1) as follows:

486(1): Any proceedings against an accused shall be held in open court, but where the presiding judge, provincial court judge or justice, as the case may be, is of the opinion that it is in the interest of the maintenance of order, the proper administration of justice or to prevent serious harm or injustice to any person shall order the exclusion of all or any members of the public from the court room, or make such other order that is less intrusive provided it achieves the same objective.60

The proposal also provided in a separate subparagraph that "serious harm" shall include child pornography and obscenity as defined by this Act. 61 The plain objective sought to be advanced by this proposal is to afford protection to victims of certain sexually related crimes. Nevertheless, that objective can already be achieved under the terms of the current section. That, at least, was the view of Gravely J. He concluded:

While s. 486(1) does not use the word "harm", in my opinion, that is implicit in the language used, namely "public morals, the maintenance of order or the proper administration of justice." While it is easy to define harm and morality as distinctly different concepts, in practical terms it is not useful to do so. Moral imperatives do not exist in a vacuum. They must be viewed in the context of the harm they are designed to prevent.

In my opinion, a court when approaching the public morality issue in a s. 486(1) enquiry cannot ignore harm to members of the public, in this case the applicants.62

The phrase "public morals" appears arcane to some extent but removal of the phrase may also remove an element of "harm" which should continue to be included in the section. Accordingly, if the section were to be amended to remove the reference to "public morals", consideration would have to be given to adding a reference to "harm" since it may not be covered by the phrase "the proper administration of justice".Proposal: That section 486(1) be retained in its current form.

3. Section 487.2

Section 487.2 prohibits, in the absence of a criminal charge, the publication of details surrounding the execution of a search warrant "without the consent of every person" referred to in the warrant. This provision has been found to contravene section 2 of the Charter by the superior courts of two provinces.63 The Saskatchewan Court of Appeal recently assumed this provision to be constitutionally valid without deciding the question.64

It is clear that section 487.2 of the Criminal Code is prima facie unconstitutional in that it violates freedom of the press as set out in section 2(b) of the Charter. Nevertheless, in spite of the prevailing view expressed in the current jurisprudence, there are legitimate public values which must be taken into account in the context of a section 1 analysis. These would include privacy concerns of individuals who, as yet, have not been charged with any criminal offence as well as legitimate law enforcement objectives. While it cannot be denied that in its current form section 487.2 is constitutionally suspect as it imposes a mandatory and complete ban on publication, until there is a ruling that it is unconstitutional after a s.1 analysis has occurred, there should be no amendment of the provision.

Proposal: That section 487.2 be retained in its current form.

4. Sections 517 and 539

These two provisions authorize the imposition of publication bans in the context of certain pre-trial proceedings. Section 517 relates to a ban upon the publication of evidence which is presented at a bail hearing held in accordance with section 515. If such an order is requested by the Crown, it is necessary for the prosecutor to demonstrate why a publication ban is warranted. However, if it is the accused who asks for the order, the order is mandatory as the court is obliged to grant it.65 Any order made pursuant to section 517 remains in effect until the accused is either discharged following a preliminary inquiry or convicted or acquitted of the crime against him or her.66 Section 539 which relates to evidence tendered at a preliminary inquiry is in almost identical terms to section 517.

To date, the constitutionality of these provisions has been sustained. In Re Global Communications Ltd. and A.G. CanS67, the Ontario Court of Appeal upheld the constitutional propriety of section 517 on the basis that it was a reasonable limitation upon freedom of the press. The New Brunswick Court of Queen's Bench in R. v. BanvilleS 68 measured section 539 against the requirements of section 2(b) of the Charter and found it to be constitutionally sufficient.

The results achieved in those cases must be revisited, however, in light of Dagenais. Applying the reasoning advanced there, it is apparent that these two provisions are seriously flawed in one significant aspect. The court possesses no discretion when the request for a publication ban upon the evidence is advanced by the accused. In that particular circumstance, the presiding judge must impose a ban. As a consequence, no balancing is permitted whereby the effect a publication ban may have upon freedom of the press may be assessed. In the post-Dagenais era, this inquiry is essential. It would appear that both section 517 and section 539 are premised on the belief that the right to a fair trial is exclusively the prerogative of an accused person, otherwise, the order would not be automatic at the behest of the defence. However, it is now beyond dispute that there is also an important societal value achieved by ensuring the fair trial of an individual charged with a criminal offence. 69 In view of this obvious flaw, sections 517 and 539 need repair.

Proposal: That sections 517 and 539 be amended to remove the requirement of a mandatory publication ban order at the request of the accused. B. Procedural Issues

Dagenais and, to a lesser extent, T.S. also addressed certain procedural issues related to a publication ban. Dagenais concerned an application for an order suppressing publication which was brought in a provincial superior court before a judge other than the trial judge. T.S. involved a similar order sought in the provincial court. Lamer C.J. chose Dagenais as the case in which to pronounce upon the various procedural issues raised in these appeals. His discussion is logically divided into two parts, one relating to applications brought either at the commencement of trial or during its course and the other relating to appeals initiated following the issuance of an order suppressing publication. The analysis and commentary which follows will also be organized in this way.

1. Pre-trial and Trial Applications

In the course of his discussion of issues relating to applications seeking a publication ban brought either before or at trial, Lamer C.J. touched upon three procedural issues, namely, (a) forum, (b) notice and (c) standing of third parties. These issues will be canvassed below in turn.

(a) Forum

Lamer C.J. began by asserting that an application for a publication ban should be brought as soon as possible in the proceedings. It "should be made before the trial judge (if one has been appointed) or before a judge in the court at the level the case will be heard (if the level of court can be established definitively by reference to statutory provisions)". He stipulated further that in the event it was not possible to ascertain the level of court which ultimately would try the accused, "then the motion should be made before a superior court judge (i.e., it should be made before the highest court that could hear the case, in order to avoid later having a superior court judge bound by an order made by a provincial court judge)." 71

The approach of the Chief Justice to the question of forum is sensible. He emphasizes that the preferred adjudicator is the trial judge. However, he also acknowledges that practicality may dictate that an application be commenced prior to when a trial court is ascertainable or a trial judge designated. A similar approach to the selection of the appropriate forum has been adopted by certain provincial appellate courts in relation to applications alleging prosecutorial non-disclosure. 72 Accordingly, it is recommended it should be codified.

Proposal:

That the Criminal Code be amended to provide for an application to seek a publication ban prior to trial. The section should require that the trial judge hear such an application and only if he or she is not identified can the application be heard by a judge of the provincial superior court.

(b) Notice

Respecting the question of notice, Lamer C.J. enumerated only the most obvious issues raised by a notice requirement, namely "[w]hich media are to be given notice, and how is such notice to be given?" 73 Unfortunately, he did little more than identify the problems and offer the view that perhaps these questions should best be resolved on a case by case basis relying upon "provincial rules of criminal procedure and the relevant case law".74

From his brief analysis of this topic, it would seem that the Chief Justice is of the opinion the onus to alert the media of an application asking for suppression of publication rests upon the party seeking such an order. This would only stand to reason. However, in the event questions arise respecting "who is to be given notice and how notice is to be given", Lamer C.J. suggests that directions may be obtained from the designated judge.75 This is an obvious area of difficulty especially in large metropolitan centres in this country which have a large number of media organizations, both print and electronic. Presumably, it would be useful for applicants to have a set procedure to obtain directions for notice included in the Criminal Code. This provision would enable the applicant to obtain directions for notice to be given, for example, to the leading media organizations in a particular centre. In most centres this would include the C.B.C.

Proposal:

That the Criminal Code be amended to include a provision enabling the party seeking a publication ban on criminal proceedings to apply for an ex parte order for direction as to which, if any, media organizations in the judicial centre should be given notice. The provision could also state that if this is done, the notice requirement has been satisfied and other media who wish to be heard ought to appear before the presiding judge and seek leave.

(c) Standing

Lamer C.J. dealt with the serious question of standing very briefly. He observed that as in most matters, the manner in which the hearing of an application is conducted is left to the discretion of the presiding judge. He did elaborate by observing that the media which wish to participate in this hearing should be given standing in accordance with "the rules of criminal procedure and the established common law principles."See footnote 76 The only clear direction the Court gave to lower courts was that "in a jury trial, a motion for a publication ban must be heard in the absence of the jury."77

The Chief Justice's discussion of standing is sensible. The rules surrounding which third party may be granted standing are well developed and especially if a notice requirement is crafted, those rules may be applied without being clouded by concerns about interested parties not receiving notice.

Proposal:

That no special rules be crafted respecting standing to third parties in applications for a publication ban. If a party not directly notified of such an application appears at the hearing, its ability to participate and the extent of that participation, if any, may be assessed in accordance with the developed law relating to third party standing.

2. Appeals

The procedural issue central to both Dagenais and T.S. was the appropriate mechanism for obtaining appellate review of a publication ban. Since the rulings in those appeals, the Court has revisited and refined the principles set out there. 78 Essentially, the nature and availability of an appellate mechanism in respect of an order made against a third party is determined by the forum in which the original order is made. T.S. and Primeau are examples of third party appeals from orders made by a provincial court judge. Dagenais is an example of an appeal taken from an order made in a provincial superior court.

In Primeau, Sopinka and Iacobucci JJ. attempted to explain the rationale for this approach as follows:

In Dagenais, the Court traces two separate paths to follow for challenges to orders made in a criminal proceeding: one for the parties to the proceeding, another for third parties. Both the accused and the Crown must apply for relief to the trial judge, or to the level of court having jurisdiction to hear the trial, if known, or otherwise to a superior court judge. An appeal of such a decision must await the end of the trial.

The procedure for third parties differs for two reasons. First, a third party, being outside the actual proceedings, cannot apply to the trial judge for relief. Second, an order deciding an issue with respect to a third party is a final order. Such a characterization is important in order to comply with the general rule barring interlocutory appeals in criminal matters.79

(a) Orders made in Provincial Courts

Orders made by a provincial court judge in respect of constitutional issues are to be reviewed by way of a prerogative writ in accordance with Part XXVI of the Criminal Code. Lamer C.J. summarized the appeal route in Dagenais this way:

If the media wish to oppose a motion for a ban brought in provincial court, they should attend at the hearing on the motion, argue to be given status, and if given status, participate in the motion. To challenge a ban once ordered, the media should make an application for certiorari to a superior court judge. To challenge a denial of certiorari, the media should appeal the superior court judge's decision to the Court of Appeal under s. 784(1) of the Criminal Code. To challenge a ban once ordered, the media should make an application for leave to appeal to the Supreme Court of Canada under s. 40 of the Supreme Court Act.

Sopinka and Iacobucci JJ. endorsed this approach and observed the "advantages of this route lie in its use of established procedures and its consistency with recent decisions of the Court."80

When this approach was applied to C.B.C. 's appeal in T.S., it was dismissed because the appellant had by-passed the provincial superior court and, instead, gone directly to the Court of Appeal. In dismissing the appeal, Lamer C.J. stated that were the Supreme Court to assume jurisdiction, it would be tantamount to endorsing a "direct appeal avenue to the Supreme Court from an order banning publication made by a provincial court judge." 81

(b) Orders made in Superior Courts

It is possible to appeal an order suppressing publication made by a provincial superior court judge. However, such an appeal lies only to the Supreme Court of Canada with leave pursuant to section 40 of the Supreme Court Act. Lamer C.J. asserted that this particular avenue was available since a "publication ban order can be seen as a final or other judgment of the highest court of final resort in a province or a judge thereof in which judgment can be had in a particular case."82

Lamer C.J. acknowledged there were problems associated with this rather cumbersome appellate mechanism, most notably expense and expedition. Nevertheless, he offered the view that these concerns may be more apparent than real. He stated:

[A] direct appeal to the Supreme Court of Canada can be faster than appeal to most courts of appeal in the country. In addition, it is less expensive to come directly to the Supreme Court of Canada than it is to go through a court of appeal before getting to the Supreme Court of Canada. Concerns about cost and delay are, therefore, misplaced. 83

In the end, he recognized that neither of these mechanisms were entirely satisfactory and that in crafting these particular appellate routes, the Court had been "forced to choose the least unsatisfactory of a set of unsatisfactory options."84 He urged "Parliament to rectify this situation by enacting legislation that provides for a right of appeal for third parties (usually the media) seeking to challenge publication bans ordered by judges under their common law or legislated discretionary authority."85 (c) Commentary

The Court has expressly invited Parliament to enact legislation providing for appeals from orders prohibiting publication and the immediate question is should this invitation now be taken up? To answer this question it is necessary to weigh both the salutary effects of codifying a third party's right to appeal and the deleterious effects of not doing so.

If amendments are not made to the Criminal Code then the appeal mechanisms set out by the Court and outlined above will operate. This will disadvantage the Crown or an accused's challenge to an interlocutory order such as a publication ban, since those parties must follow the traditional avenues of appeal set out in the Code. While it is true that any party affected by the appeal, including the Crown, would have standing to appear in a third party's appeal 86, generally speaking, the Crown or the accused must await the final verdict and pursue an appeal of an interlocutory appeal if appropriate grounds exist. To counterbalance this concern, the mechanisms established by Dagenais do not encourage appeals as it is not user friendly.

Furthermore, maintaining the status quo will result in inconvenience and increased expense to the parties, especially those having to appeal directly to Ottawa. An accused's right to a trial within a reasonable time guaranteed under section 11(b) of the Charter may also be impaired in those cases where the trial is adjourned pending the third party appeal. However, this disadvantage may exist in any third party appeal. The Supreme Court itself may be inconvenienced with the burden of considering leave applications in respect of a wide range of third party appeals which ordinarily likely would never reach that Court.

On balance, however, Lamer C.J.'s challenge to Parliament should be embraced, at least with respect to orders limiting publication. However, despite his comments respecting the efficiency of appealing directly to the Supreme Court, it is suggested there should be an appeal to the provincial court of appeal from orders of this kind, regardless of the forum which issues it. A provincial court of appeal is far more likely to be aware of, and sensitive to, local concerns current in the region, than a distant court in Ottawa. In addition, the physical proximity of the Court of Appeal to the litigants may reduce costs.

The procedure established in Dagenais and refined in subsequent cases has already been endorsed in respect of other appeals brought by third parties to a prosecution.87 Therefore, any appeal mechanism for publication bans will be an exception to this general appellate regime for third parties. One important issue is whether the appeal structure for publication bans should parallel the current regime for summary conviction and indictable matters. There is a certain logic to that approach. On the other side, there may be wisdom in having all appeals from orders of this kind heard with leave by the provincial court of appeal. 88 As there will not be many of these kinds of appeals, having them go to the provincial court of appeal may ensure consistency.

Proposal: T

That the Criminal Code be amended to provide for an appeal from an order prohibiting publication to the provincial court of appeal with leave regardless of whether it was issued in a summary conviction or indictable matter.